This article, written by Judith Bomster and Alisha Cahall, was originally published bot the NH Bar News, and can be found here (p27).
The Supported Decision Making (SDM) law, RSA 464-D, passed in 2021 and became effective on January 1, 2022. SDM helped redefine how individuals with disabilities make life decisions. Unlike the traditional guardianship model which involves a complete transfer of an individual’s decision-making authority to another person through a court process, SDM allows an individual to maintain their autonomy and make decisions about their own life through use of support networks. SDM is not a substitute for durable powers of attorney (POAs) if an individual has capacity to sign POAs but still needs additional supports. However, while SDM preserves an individual’s independence with the help of a trusted support network, it is important to highlight several advantages and potential challenges associated with its implementation.
Advantages
- Preserves Autonomy: SDM allows individuals with disabilities the freedom to make their own decisions regarding health, finances, and education by allowing them to actively participate and engage in making choices with the assistance of personally selected supporters who could include family members or close friends.
- Provides a Comprehensive Approach: The individual with disabilities is considered the “principal” under an SDM arrangement, and a supporting party is considered the “supporter”. The collaborative approach between the principal and supporter ensures that the principal remains in control at all times. The SDM agreement is the foundation for identifying specific decisions with which a principal may need assistance and the supporters who will help. A sample SDM agreement can be found in RSA 464-D:16. An SMD agreement may be signed by anyone over the age of 18, including seniors who may start to need help with decision making but wish to retain their life-long autonomy. The SDM agreement ensures an individual with disabilities carefully defines the scope of authority granted to their supporter. For instance, an 18-year-old diagnosed with autism may be challenged with reading and understanding financial forms to open a bank account. A supporter may be asked to be an intermediary with the bank, and to assist the principal with making an informed decision by explaining and discussing financial information with the principal. While performing these duties, the supporter must consider the principal’s values, beliefs, wishes, cultural norms, and traditions, which leads to a more informed and personalized course of action for the individual. This ensures the process remains transparent and the supporter respects the rights of the principal.
- Protects the Individual through Procedural Safeguards: The SDM agreement must be in writing and the supporter has no more authority than the agreement expressly grants to them. The SDM agreement cannot grant the supporter the ability to make independent decisions for the principal as would be the case for a court-appointed guardian or an agent under a POA that has been activated. However, execution of an SDM agreement does not preclude the principal from acting independently of the supporter or revoking the SDM agreement at any time. The key distinguishing feature of the SDM agreement is that the principal retains full capacity to make their own decision with the defined assistance, when needed.
- Takes the Burden off the Court System: If a principal has capacity to sign POAs as well as an SDM agreement, there should be no need for court involvement and no appointment and transfer of decision-making authority to a guardian. SDM agreements can be completely private arrangements that take place between the principal and their supporter. However, an individual over whom a court has appointed a guardian may seek to reduce the scope of the guardianship if certain decision making effectively could be accomplished through an SDM agreement, thus returning some autonomy to the individual.
- Promotes Acceptance and Inclusivity: In an era promoting more diversity, equity and inclusion, the SDM model not only encourages and helps to foster a culture of respect, acceptance and understanding of individuals with atypical needs, but also is designed to dispel historical stigmas that important members of our society are incapable of independence.
Potential Challenges
- New Legal Model: Unlike the well-established laws regarding guardianship, RSA 464-A, financial powers of attorney, RSA 564-E, and health care powers of attorney, RSA 137-J, the SDM model only has been statutorily recognized in NH since 2022. While the disability rights community has made strides in promoting SDM, challenges persist in its widespread implementation. Despite efforts to raise awareness, there continues to be gaps in education and training for individuals, families, professionals, and institutions. Attorneys will play an important role by helping clients navigate the specific terms of an SDM agreement and breach these gaps by providing a deeper understanding of the principles and practices associated with SDM and those whom this law is intended to serve.
- Potential for Conflict: Due to the collaborative nature of the SDM process, it has the potential to introduce conflict among the principal, the supporter, and other persons who may disagree with a principal’s ultimate decision. A key to ensuring an SDM agreement works is heavily dependent on the quality, reliability, and trustworthiness of the supporter. The delicate balance of managing diverse perspectives, while ensuring that the principal’s voice remains central, may prove challenging depending on the circumstances. Likewise, any unequal power dynamics between a principal and supporter also could jeopardize the benefits of the SDM agreement. In addition, attorneys should remain cognizant of who their client is and their ethical obligations under the rules of professional conduct when drafting an SDM agreement, providing post signing advice or assisting in resolving any disputes, as families may want the attorney to represent both the principal and the supporter in the process.
As SDM evolves in New Hampshire, so do the opportunities and potential challenges that accompany this new planning tool. Although this is just the beginning of the SDM rollout, the hope is that it continues to advance and develop as a progressive alternative to guardianship and a means of meeting the diverse needs of individuals with disabilities. Attorneys can play an integral role in education and implementation by engaging with the community and speaking to the benefits of SDM.